How to Get Your Case File From Your Old Lawyer

Why the file matters when you switch

Your new lawyer cannot pick up where the last one stopped without the file. It shows what the insurance company has already been told, what records were collected, which deadlines were met and which are coming. Without it, the new firm has to rebuild the case from scratch, and that takes time you may not have.

The file is also your record of what happened. If you are switching because the case stalled, the file shows whether anything was done. That can matter later if there is a disagreement about the old firm’s fee.

What a personal injury case file should include

Ask for the complete file, not a summary. For an injury case, that usually means:

• The signed fee agreement and any letters about fees or costs
• Police or incident reports, photos, video and witness names
• Medical records and bills, and the list of providers who treated you
• All letters and emails with insurance companies, including claim numbers and any policy limits information
• Any demand letter and every offer received
• If a lawsuit was filed: the complaint, answers, discovery, deposition transcripts, expert reports and the current court schedule
• Notes about any defense medical exam and the report from it
• A list of costs the firm advanced, with receipts

Ask for electronic copies if that is faster. Most of a modern case file lives on a server, and it can be sent the same day.

California: release on request, paid or not

California’s rule is clear. When a representation ends for any reason, rule of professional conduct 1.16(e)(1) requires the lawyer to promptly release to the client, on request, all client materials and property. The rule lists correspondence, pleadings, deposition transcripts, experts’ reports, exhibits and physical evidence, in paper or electronic form, “whether the client has paid for them or not.” Rule 1.16(e)(2) also requires a refund of any advance fee or expense that was not earned or spent.

That means a California lawyer cannot hold your file to force payment of a fee. If they believe they are owed money, their remedy is a claim against the recovery, which the new firm can protect while the case goes on.

While the case is still open with them, California lawyers also have a duty under Business and Professions Code section 6068(m) to answer reasonable status questions and keep you informed of significant developments.

Texas: the file belongs to the client

The State Bar of Texas ethics committee says in Opinion 570 that the file belongs to the client. When representation ends, Texas Rule 1.16(d) requires the lawyer to take reasonable steps to protect the client, including surrendering papers and property the client is entitled to and refunding unearned advance payments.

Texas lawyers may have a common-law retaining lien on papers, but it has limits. The rule allows a lawyer to keep papers only if that will not prejudice the client in the matter, and Opinion 411 says a lawyer cannot keep the file when doing so would cause foreseeable harm, such as when a deadline or hearing is coming up.

If a Texas lawyer will not respond to a file request, the State Bar’s Client-Attorney Assistance Program at (800) 932-1900 helps clients with communication problems like this. Texas cases at Beverly Law are handled by our Texas-licensed attorneys, Joyce Ondich and John Efstathiou.

Washington: papers can be held only as other law allows

Washington is the least clear of the three states on this point, so it helps to know the rules. RPC 1.16(d) requires a lawyer whose representation ends to take reasonably practicable steps to protect the client’s interests, including surrendering papers and property the client is entitled to. The same rule says the lawyer may keep papers relating to the client “to the extent permitted by other law.”

One source of that other law is RCW 60.40.010, which gives lawyers a lien on client papers that came into their possession during the work. So a Washington firm with an unpaid fee claim may point to that statute. The same statute also gives the lawyer a lien on the case and its proceeds, which means the fee claim is protected from the recovery anyway. When we take over a Washington case, we confirm in writing that the old firm’s claim will be handled from the recovery, which usually removes any reason to hold the papers.

The Washington State Bar Association does not resolve fee disputes, but its page on concerns about a lawyer explains how to raise a problem with a lawyer’s conduct.

If the file is slow to arrive

Deadlines do not pause while you wait for paperwork. A new lawyer can often get what is urgent from other places: court records from the docket, medical records straight from your providers, and the claim file details from the insurer once a letter of representation is sent. That way the case keeps moving even if the old firm takes a few weeks.

Follow up in writing and keep copies. Email is fine. A short, polite note that repeats the request and gives a date is usually enough. You can use the wording in our letter to fire your lawyer, which includes a file request.

What to check once the file arrives

The first job with a transferred file is finding the deadlines. Filing deadlines for injury lawsuits are short and they keep running while lawyers change:

Exceptions exist, for example for minors, so the real date depends on your facts. After deadlines, a new lawyer looks at what the insurer has received, whether a demand went out, which medical bills are unpaid, and whether any liens from health plans or hospitals have been noted. Gaps in treatment records and missing bills are common in a file that sat for a while, and they are easier to fix early.

Let your new lawyer handle the request

You do not need to fight for your own file. When you hire Beverly Law, we send the substitution or notice of new counsel, request the complete file and deal with the old firm’s fee claim, so you are not caught in the middle.

On cost: switching to us does not raise your fee. Anything your former lawyer is owed for their work is paid out of our fee rather than added to what you pay. Costs the old firm advanced, such as filing fees and medical record charges, are normally repaid from the recovery, the same as on any case. If there is no recovery, you owe us nothing in fees or costs.

One case we cannot take: if you already signed a settlement release and the case is settled, the release generally ends the claim, and getting the file will not change that.

See what happens to your old lawyer’s lien or go back to our guide to switching lawyers. For a free review in English or Spanish, contact us or call (310) 552-6959.

Sources

1. California Rules of Professional Conduct (State Bar of California)
2. Cal. Bus. & Prof. Code § 6068
3. Professional Ethics Committee for the State Bar of Texas, Opinion 570
4. Texas Disciplinary Rules of Professional Conduct, Rule 1.16
5. Professional Ethics Committee for the State Bar of Texas, Opinion 411
6. State Bar of Texas, Client-Attorney Assistance Program (CAAP)
7. Washington RPC 1.16
8. RCW 60.40.010
9. Washington State Bar Association, Concerns about a lawyer
10. Cal. Code Civ. Proc. § 335.1
11. Cal. Gov. Code § 911.2
12. Tex. Civ. Prac. & Rem. Code § 16.003
13. Tex. Civ. Prac. & Rem. Code § 101.101
14. RCW 4.16.080
15. RCW 4.96.020